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Appeals court OKs permits for Upper Peninsula mine

Appeals court upholds state decision to grant permits for Upper Peninsula nickel, copper mine

Posted on Aug. 13, 2014 at 12:00 a.m. | Updated on Aug. 13, 2014 at 10:24 a.m.

TRAVERSE CITY, Mich. (AP) — The Michigan Court of Appeals on Wednesday upheld a decision by state regulators to allow construction of a nickel and copper mine in the Upper Peninsula backwoods, the latest development in a 12-year legal and political struggle.

A three-judge panel ruled unanimously that the Department of Environmental Quality was within the law to approve mining and groundwater discharge permits for the Eagle Mine in Marquette County. Kennecott Minerals Co. began the project but its present owner is Toronto-based Lundin Mining Corp.

Environmental groups, a Native American tribe and a private hunting and fishing club have fought to prevent the mine from being built since Kennecott conducted exploratory drilling in 2002, saying it poses numerous ecological risks. The department issued the permits five years later, a decision upheld by an administrative law judge and a circuit court before the appeals court took the case.

“Today’s ruling validates the MDEQ’s thorough and extensive permitting review process, which ensures responsible development with strong environmental protections,” said Dan Blondeau, spokesman for the mining company.

A spokesman for the National Wildlife Federation, one of the groups that challenged the permits, said no decision had been made about whether to appeal to the Michigan Supreme Court. But with the mine now constructed, production scheduled to begin later this year and no other legal challenges pending, the issue may be largely moot.

The $800 million project will provide 330 jobs during production. It will be the only U.S. mine where nickel is the primary targeted mineral, with about 360 million pounds to be extracted. Nickel is a base metal used to make stainless steel.

Michelle Halley, an attorney who represented the federation during its appeals, said the ruling “still comes as a surprise, because the facts and the science and the law still line up on the other side. I’m not naive, but somewhere along the line here some court should realize that.”

In their written opinion, Judges Mark Cavanagh, Donald Owens and Cynthia Stephens said the case “reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources and public health.”

They repeatedly sided with the DEQ on issues raised by the wildlife federation, the Huron Mountain Club, the Keweenaw Bay Indian Community and the Yellow Dog Watershed Preserve. The opponents contend the mine poses a serious risk to groundwater and the Salmon Trout River, a pristine stream directly above part of the underground mine chamber.

If sulfide mineral ores are exposed to air and water, a chemical reaction generates acid that can pollute waters. Opponents say the mine’s roof, a rock mass known technically as the “crown pillar,” could collapse and enable water from the river or nearby wetlands to flow into the chamber, causing extensive acid drainage.

But the DEQ has declared the mine structurally sound, and the appeals panel agreed with the lower court that the conclusion was based on “substantial evidence.”

The panel also found the company had satisfied legal requirements to show its operations would cause no damage outside the immediate mining area and that its plan for eventually filling and closing the mine included adequate measures to prevent acid rock drainage.

Follow John Flesher on Twitter at http://twitter.com/JohnFlesher


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